1 Military, Order, Detention, Treatment, and Trial of Certain Non–Citizens in the War Against Terrorism, 66 Fed. Reg. 57, 833 (Nov. 16, 2001)Google Scholar.

2 See, e.g., Ruth, Wedgwood, Al Qaeda, Terrorism, and Military Commissions, 96 AJIL 328 (2002)Google Scholar.

3 Hamdan v., Rumsfeld, 126 S.Ct. 2749 (2006)Google Scholar.

4 Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (to be codified at 10 U.S.C. §§948a– 950w and other sections of titles 10, 18, 28, and 42) [hereinafter MCA].

5 The term “law of war” is referenced throughout the MCA and was applied by the Supreme Court in Hamdan as it was incorporated in the U.C.M.J. It is commonly used interchangeably with “international law of armed conflict,” “jus in bello,” and “international humanitarian law.” While “law of war” is not defined in the MCA, Department of Defense (DoD) regulations define it as “[t]hat part of international law that regulates the conduct of armed hostilities” and further specify that the term “encompasses all international law for the conduct of hostilities binding on the United States or its individual citizens, including treaties and international agreements to which the United States is a party, and applicable customary international law.” DoD Law of War Program, DoD Directive 2311.01E, sec. 3.1. (May 9, 2006), available at <http://www.dtic.mil/whs/directives/search.html>.

6 See Kate, Zernike, Senate Approves Broad New Rules to Try Detainees, N.Y. Times, Sept. 29, 2006, at A1 Google Scholar (quoting Senator John McCain as promising his colleagues that” [t]he conventions are preserved intact” and Senator Lindsey Graham as declaring after the vote on the MCA that “America can be proud. Not only did she adhere to the Geneva Conventions, she went further than she had to, because we’re better than the terrorists.”).

7 Hamdan, 126 S.Ct. at 2786 Google Scholar.

8 Convention Relative to the Treatment of Prisoners of War, Art. 84, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135 (consented to by the United States Senate on July 6, 1955, with reservations) [hereinafter Third Geneva Convention],

9 Id., Art. 3 (which is common to all four Geneva Conventions of 1949) [hereinafter common Article 3].

10 Hamdan, 126 S.Ct. at 2795 Google Scholar (quoting common Article 3).

11 Id. (quoting common Article 3, para. 1(d)).

12 Hamdan, 126 S.Ct. at 2798 Google Scholar.

13 Id. at 2797.

14 Id. at 2798.

15 The MCA makes hearsay evidence admissible under various conditions; permits classified information (or substitutions or summaries in its place) to be used against the defendant while restricting the ability to challenge the sources, methods, or activities by which the government acquired the evidence; allows the defendant to be excluded from the proceedings under some circumstances; imposes some limits on the right of defendants to be represented by counsel of their choosing; and makes inapplicable prohibitions in the U.C.M.J. related to compulsory self–incrimination and requirements for a speedy trial. MCA, supra note 4, sec. 4 (to be codified as amended in scattered sections of 10 U.S.C).

16 10 U.S.C. §948b(f) (quoting common Article 3, supra note 9, para. 1(d)).

17 18 U.S.C. §2441 note; see infra text at note 42.

18 Hamdan, 126 S.Ct. at 2797 Google Scholar.

19 MCA sec. 6(c), 42 U.S.C. §2000dd–0.

20 The MCA bars military commissions from considering testimony obtained through interrogation methods that amount to cruel, inhuman, or degrading treatment, but retroactively only to December 30, 2005, the date on which the Detainee Treatment Act of 2005 was signed into law. Detainee Treatment Act of 2005, Pub. L. No. 109-148, §1003, 119 Stat. 2739, 2739 (to be codified at 42 U.S.C. §2000dd); MCA sec. 3, 10 U.S.C. §948r(d). Statements obtained through coercive interrogation methods that fall short of cruel, inhuman, or degrading treatment are not barred. Section 6(a) of the MCA gives the president the power “to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.” 18 U.S.C. §2441 note. This section also asserts that executive orders containing such interpretations are “authoritative.”

21 In a 2002 memorandum to the president, White House counsel Alberto R. Gonzales specifically attacked law of war restrictions on executive branch policies in this area by arguing that “[t]he war against terrorism is a new kind of war. . . . This new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners.” Scott, Shane, Terror and Presidential Power: Bush Takes a Step Back, N.Y. Times, July 12, 2006, at A20 Google Scholar; see also Sean D., Murphy, Contemporary Practice of the United States, 98 AJIL 820, 822 (2004)Google Scholar. Subsequent criticism of harsh interrogation techniques, particularly those reportedly practiced by employees of the Central Intelligence Agency, has not ended policies that countenance aggressive methods of questioning. Although specific methods used by the CIA have not been identified, President Bush stated that his “one test” for the MCA when it came to his desk was “whether it would allow the CIA Program to continue—and this bill meets that test.” See White, House, Fact Sheet: The Military Commissions Act of 2006 (Oct. 17, 2006), available at <http://www.whitehouse.gov/news/releases/2006/10/20061017.html>>Google Scholar.

22 Michael Reisman, W., Holding the Center of the law of Armed Conflict, 100 AJIL 852, 853–54 (2006)Google Scholar.

23 John, Yoo, War by Other Means 208 (2006)Google Scholar (also conceding that, for various reasons, “Military commissions have been the Bush administration’s most conspicuous policy failure in the war against al Qaeda”).

24 10 U.S.C. §948a(1)(a)(i). This definition of combatancy removes any requirements for proximity to the battlefield itself and includes individuals supporting hostile actions against any “co-belligerent” country, not just the United States.

25 Even though U.S. citizens may qualify as unlawful combatants, only alien unlawful combatants are subject to trial by military commissions under the MCA. 10 U.S.C. §948b(a).

26 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226, 257 (July 8))Google Scholar; Reisman, supra note 22, at 856 (“At the very heart of the law of armed conflict is the effort to protect noncombatants by insisting on maintaining the distinction between them and combatants.”) Former secretary of defense Donald H. Rumsfeld ironically emphasized this point (in criticizing the Taliban’s lack of insignia) by saying, “A central purpose of the Geneva Convention was to protect innocent civilians by distinguishing very clearly between combatants and noncombatants.” Jim, Garamone, Rumsfeld Explains Detainee Status, U.S. Dep’t of Defense News (Feb. 8, 2002), available at <http://www.defenselink.mil/news/Feb2002/n02082002_200202086.html>Google Scholar.

27 Common Article 3, supra note 9, para. 1.

28 Yoram, Dinstein, The Conduct of Hostilities Under The Law of International Conflict 27 (2004)Google Scholar.

29 Id. at 27–28.

30 International Committee of The Red Cross, Basic Rules of The Geneva Conventions And Their Additional Protocols 7 (1983) (noting that respect for the lives and physical and moral integrity of those “who do not take a direct part in hostilities” is one of the “basic rules of international humanitarian law in armed conflicts”); William H., Taft IV, The Law of Armed Conflict After 9/11: Some Salient Features, 28 Yale J. Int’l L. 319, 323 (2003)Google Scholar (“Application of the law of armed conflict, and in particular its bedrock principles of distinction and fundamental protections, serves humanitarian ends and ultimately reinforces the rules governing international behavior at all times, even in war.”).

31 Hamdan v., Rumsfeld, 126 S.Ct. 2749, 2794 (2006)Google Scholar.

32 10 U.S.C. §950v(b)(28).

33 Hamdan, 126 S.Ct. at 2785 (“Far from making the requisite substantial showing, the Government has failed even to offer a ‘merely colorable’ case for inclusion of conspiracy among those offenses cognizable by law–of–war military commission.”). Other offenses that the MCA authorizes military commissions to try, such as perjury, false testimony, and obstruction of justice, would presumably raise similar concerns as independent war crimes if prosecutors are able to proceed on these secondary offenses in lieu of more widely recognized war crimes. The relevant section of the MCA appears, however, to impose limits in this regard by referring to “perjury, false testimony, or obstruction of justice related to military commissions under this chapter? 10 U.S.C. §950w(a) (emphasis added).

34 10 U.S.C. §950v(b)(25)(A) provides:

35 Perjury, for example, is an ordinary criminal offense that in some cases may not be available in the broader context of the law of war since combatants accorded prisoner–of–war (POW) status have only limited obligations to answer their interrogators’ questions. See infra note 74.

36 The drafters of the MCA appear to have struggled with this question when they established criminal penalties for an unlawful combatant “who intentionally kills one or more persons, including lawful combatants, in violation of the law of war.” 10 U.S.C. §950v(b)(15). Since other provisions in the MCA specify offenses for the killing of noncombatants, it is unclear whether this section is intended to criminalize the killing of combatants absent some other “violation of the law of war.”

37 Hamdan, 126 S.Ct. at 2786.

38 10 U.S.C. §950p(a). Since the provisions of the MCA are judged by Congress to be “declarative of existing law,” Congress concludes that “they do not preclude trial for crimes that occurred before the date of [their] enactment.” Id, §950p(b).

39 MCA sec. 6(b), 18 U.S.C. §2441 note.

40 Id., sec. 6(a)(2). This section asserts that the Act’s enumerated violations of common Article 3 “fully satisfy the obligation under Article 129 of the Third Geneva Convention for the United States to provide effective penal sanctions for grave breaches which are encompassed in common Article 3.” Article 129 of the Third Geneva Convention, supra note 8, provides in pertinent part that “[t]he High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.” The “following article,” Article 130 of the Third Geneva Convention, makes no mention of common Article 3 and thus appears to be difficult to reconcile with the references to “grave breaches” in section 6(a)(2) of the MCA.

Some legal scholars view the regimes governing international and noninternational conflicts as increasingly converging and have observed that “[t]here is no moral justification, and no truly persuasive legal reason, for treating perpetrators of atrocities in internal conflicts more leniently than those engaged in international wars.” See, e.g., Theodor, Meron, Reflections on the Prosecution of War Crimes by International Tribunals, 100 AJIL 551, 573 (2006)Google Scholar. As noted by Michael Matheson in his contribution to this Agora, the United States argued in 1995 in an amicus brief to the International Criminal Tribunal for the Former Yugoslavia in the case of Prosecutor v. Tadić that the “grave breaches” regime should be applied to internal as well as international conflicts. Michael J., Matheson, The Amendment of the War Crimes Act, 101 AJIL 48, 52–53 n.23 (2007)Google Scholar.

41 Section 6(b)(5) of the MCA does provide that “[t]he definitions in this subsection are intended only to define the grave breaches of common Article 3 and not the full scope of United States obligations under that Article.” 18 U.S.C. §2441 note. This provision could be interpreted as an acknowledgment that the United States remains obligated to observe all the prohibitions found in common Article 3, even though some are omitted with respect to the imposition of criminal sanctions. The MCA does not, however, elaborate on what constitutes the “full scope of U.S. obligations” and whether it includes the omitted provisions, making the U.S. commitment to full compliance with those obligations unclear.

42 The willingness of the plurality in Hamdan to use provisions of the International Covenant on Civil and Political Rights to illustrate the basic legal protections that are found in a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples” draws attention to the likely range of international debate over the import of this aspect of common Article 3. Hamdan, 126 S.Ct. at 2796–97 n.66 Google Scholar.

43 Vince, Crawley, U.S. Dep’t of State, International Information Programs, U.S. Official Explains New Military Commission Law: State’s Bellinger Says Accused Will Receive Full and Fair Trials, Oct. 23, 2006, available at <http://usinfo.state.gov/dhr/human_rights/detainees.html>Google Scholar.

44 For example, the Statute of the International Criminal Court criminalizes “serious violations of article 3 common to the four Geneva Conventions of 12 August 1949” including “[c]ommitting outrages upon personal dignity, in particular humiliating and degrading treatment.” Rome Statute of the International Criminal Court, Art. 8(2)(c)(ii), July 17, 1998, 2187 UNTS 90; see also Prosecutor v. Aleksovski, No. IT–95–14/1–T (June 25, 1999)Google Scholar (finding Zlatko Aleksovski guilty of committing outrages against human dignity in violation of the Geneva Conventions); Prosecutor v. Kamuhanda, No. ICTR–95–54A–T (Jan. 22, 2004)Google Scholar (finding Jean de Dieu Kamuhanda guilty of committing outrages against human dignity, among other crimes).

45 Lindsay, Moir, The Law of Internal Armed Conflict 32 (2002)Google Scholar.

46 The government had asserted that common Article 3 did not apply to Hamdan because the conflict with A1 Qaeda was “ ‘international in scope’ “ and thus did not qualify as a “‘conflict not of an international character.’” Hamdan, 126 S.Ct. at 2795. Previously, the Justice Department had argued in a memorandum to the president in 2002 that common Article 3 “refers specifically to a condition of civil war, or a large–scale armed conflict between a State and an armed movement within its own territory.” Murphy, supra note 21, at 821. Since the beginning of Operation Enduring Freedom, the U.S. government has used several different legal rationales to explain why Qaeda detainees are not eligible for the full protections of the Third Geneva Convention and why the conflict with A1 Qaeda is also beyond the reach of the Third Geneva Convention generally, including the argument that it is not applicable to a nonstate, terrorist group. Id. at 820–24; see also Sean D., Murphy, Contemporary Practice of the United States, 96 AJIL 461, 476–78 (2002)Google Scholar.

47 Much of the conduct criminalized in section 3 of the MCA goes beyond the limited rules that have traditionally been applied to noninternational armed conflicts. Enumerated war crimes that are more closely associated with international armed conflicts than common Article 3 violations include attacking protected property, pillaging, denying quarter, employing poison or similar weapons, using treachery or perfidy, and improperly using a flag of truce. While the United States cannot prosecute new crimes on the basis of conduct that occurred before the enactment of the MCA, Congress remains free to interpret common Article 3 (1) (a) as now encompassing a larger set of violations of the law of war, including Hague Regulations such as those prohibiting the employment of poison or similar weapons, and to make these rules applicable to noninternational armed conflicts.

Even though some view the two regimes as increasingly converging, the distinction between rules governing international and those governing noninternational armed conflicts remains. That distinction, however, is further confused by the previously noted decision of Congress in the MCA to criminalize the most serious violations of common Article 3 by describing them as “grave breaches” when that term is widely recognized only in the context of international armed conflicts. See supra note 40 and corresponding text.

48 Hamdan, 126 S.Ct. at 2794–95Google Scholar.

49 Congressional efforts to impose some standards on U.S. interrogation practices and the treatment of detainees included legislation introduced in October 2005, by Senator John, McCain. A revised version of his proposal was later signed into law as part of the Detainee Treatment Act of 2005, supra note 20 Google Scholar.

50 See, e.g., Eric A., Posner, Terrorism and the Laws of War, 5 Chi. J. Int’l L. 423, 430 (2005)Google Scholar (“Suppose that the US’s next war is with North Korea. There is no reason to believe that North Korea will torture American POWs because US forces tortured Iraqis.”). Other aspects of reciprocity are also not guaranteed, as humane treatment of POWs by the United States in the North Korean and Vietnam conflicts did not prevent the systematic mistreatment of American POWs by those countries.

51 Id.

52 Even if other countries make different calculations, the U.S. military incorporates the law of war into its training, plans, and operations on the basis of several assumptions. These include the positive role that the law of war can play in helping U.S. commanders to maintain discipline and efficiently employ U.S. forces and the negative effect that violations of the law of war may have in detracting from mission accomplishment and possibly leading to a loss of public support and/or an increase in enemy resistance. See Hays Parks, W., Teaching the Law of War, Army Law., June 1987, at 4 Google Scholar, 5. Without making any distinctions as to conflicts or adversaries, official DoD policy thus provides that “[m]embers of the DoD Components comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations.” DoD Directive 2311.01E, supra note 5, sec. 4.1.

53 Murphy, supra note 21, at 821.

54 Id. at 822–23. At the same time, the president determined that Taliban detainees as a group were unlawful combatants and were not entitled to POW status. In so doing, the president prevented Taliban detainees from exercising any rights they may have had under Article 4 of the Third Geneva Convention to individualized determinations of their unlawful combatant status by a “competent tribunal” in the event that there was any “doubt” regarding their status. The Justice Department argued, however, that a presidential determination removed any doubts about their status and made individualized review by a tribunal unnecessary. Id.

55 Id. at 822 (noting that Secretary of State Colin Powell had argued in a memorandum responding to Attorney General Gonzales that withholding POW status across the board would “reverse over a century of U.S. policy and practice in supporting the Geneva Conventions and undermine the protections of the law of war for our troops, both in this specific conflict and in general,” and would have “a high cost in terms of negative international reaction”).

56 Irregular or militia forces enjoy the status of lawful combatants only if they have a responsible commander, wear distinctive and visible insignia, openly bear arms, and generally observe the laws and customs of war. Third Geneva Convention, supra note 8, Art. 4(A)(2). However, inflexible or rigid interpretations of rules such as those requiring lawful combatants to wear distinctive insignia are not consistent with the practice of the United States with respect to its own Special Forces. See Hays Parks, W., Special Forces’ Wear of Non-Standard Uniforms, 4 Chi. J. Int’l L. 493 (2003)Google Scholar.

57 For example, the Clinton administration demanded that POW status be accorded to three American soldiers on a peacekeeping mission in Macedonia whom Serbian forces abducted along the border with Yugoslavia during the Kosovo conflict. See John H., Cushman Jr., Crisis in the Balkans: The Prisoners; New Focus Is on Status of the 3 as P.O.W’s N.Y Times, Apr. 5, 1999, at A6 Google Scholar.

58 Oliver E., Williamson, The Mechanisms of Governance 48–49 (1985)Google Scholar; Kenneth A., Shepsle, Discretion, Institutions, and the Problem of Government Commitment, in Social Theory For a Changing Society 245, 247, 254–57 (Pierre, Bourdieu & James S., Coleman eds., 1991)Google Scholar. On the other hand, actions that promote an image of unpredictability serve to reduce a state’s ability to make credible commitments. Robert O., Keohane, After Hegemony: Cooperation and Discord In The World Political Economy 259 (1984)Google Scholar.

59 Charles, Lipson, Why Are Some International Agreements Informal? 45 Int’l Org. 495, 508–11 (1991)Google Scholar (suggesting that the treaty–making process can serve such a signaling function).

60 Because America confronts an enemy that is committed to terrorist acts and violations of the law of war, some may argue that a “differentiated” credible commitment by the United States is appropriate, i.e., one demonstrating to our Western allies a commitment to the law of war while rejecting sending a similar signal of commitment to Al Qaeda. Although a complete analysis of this position is beyond the scope of this brief Agora essay, such an approach raises at least two problems with respect to the MCA. First, as an official legislative act that is applicable to all unlawful combatants rather than a mere statement of policy in the war on terror, the MCA casts a long legal shadow over all U.S . commitments to the Geneva Conventions. Second, some suspected Qaeda terrorists are nationals of states that are close allies of the United States, making such a “differentiated” approach very difficult. See, e.g., Alan, Cowell, Briton Wants Guantánamo Closed, N.Y. Times, May 11, 2006, at A24 Google Scholar (noting that after British attorney general Lord Goldsmith secured the release of nine Britons who were detained at Guantánamo Bay, he urged closure of that facility based on the failure of proposed U.S. military tribunals to offer “sufficient guarantees of fair trial in accordance with international standards”).

61 Griff, Witte, New Law Could Subject Civilians to Military Trial; Provision Aimed at Contractors, but Some Fear It Will Sweep up Other Workers, Wash. Post, Jan. 15, 2007, at A1 Google Scholar (“The Pentagon has estimated that there are 100,000 government contractors operating in Iraq, doing such jobs as serving meals, guarding convoys and interrogating prisoners.”). Although then–defense secretary Rumsfeld defended the extensive use of private contractors in Iraq by saying it “frees up military personnel in combat zones,” there has been considerable disagreement about what constitutes appropriate “nonmilitary” missions for these contractors. Peter, Spiegel, U.S. Is Faulted for Using Private Military Workers; The Reliance on Security Firms to Interrogate and Transport Suspected Terrorists Has Created ‘Rule–Free Zones,’ Says Amnesty International, L.A. Times, May 24, 2006, at A26 Google Scholar; see also William, Neikirk, Use of Contractors for Military Purposes Under Scrutiny, Chi. Trib., May 9, 2004, at C16 Google Scholar.

62 See Contractor Personnel Authorized to Accompany the U.S. Armed Forces, DoD Instruction 3020.41, sec. 6.1.1. (Oct. 3, 2005), available at <http://www.dtic.mil/whs/directives/search.html> (providing that contingency contractor personnel “may support contingency operations through the indirect participation in military operations, such as by providing communications support, transporting munitions and other supplies, performing maintenance functions for military equipment, providing security services . . . and providing logistic services such as billeting, messing, etc.” (emphasis added)). Contractors are permitted to provide “security services” only if they are “for other than uniquely military functions.” Id., sec. 6.3.5.

63 Id., sec. 6.3.5.2. This section provides:

64 Third Geneva Convention, supra note 8, Art. 4(A)(4); U.S. Dep’t of the Army, The Law of Land Warfare, para. 61.A(4) (Field Manual 27-10, 1956); see also DoD Instruction 3020.41, supra note 62, sec. 6.1.1.

65 Dinstein, supra note 28, at 28, 42.

66 The MCA risks confusing some already uncertain aspects of this problem. Determining whether contractors and civilians who support a myriad of U.S. military activities are directly or actively engaged in hostilities has previously raised difficult questions with respect to some of the services that they provide. See generally Michael N., Schmitt, Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees, 5 Chi. J. Int’l L. 511 (2005)Google Scholar.

67 An innovative attempt by North Korea in 1996 to create a new war crime to employ against a captured American helicopter pilot (based on his inadvertent violation of the Korean Armistice Agreement when his helicopter crashed in North Korea) demonstrates the hazards of U.S. encouragement of such unilateral legal innovations. See Scott R., Morris, America’s Most Recent Prisoner of War: The Warrant Officer Bobby Hall Incident, Army Law., Sept). 1996, at 3 Google Scholar (North Korea later declined to pursue these charges).

68 Third Geneva Convention, supra note 8, Art. 13.

69 Adam, Liptak, A Nation at War: Geneva Conventions; Public Opinion Effort Leans on Rules of War, N.Y. Times, Mar. 26, 2003, at B11 Google Scholar (noting Pentagon spokeswoman Victoria Clarke’s criticism of the Iraqi actions and quoting her as saying, “It is a blatant violation of the Geneva Convention to humiliate or abuse prisoners of war or to harm them in any way.”).

70 MCA sec. 6(a)(2), 18 U.S.C. §2441 note. On the domestic level, whether Congress has the power to dictate these terms to U.S. courts is likely to generate considerable debate, along with provisions that imply deference by U.S. courts to the president’s binding interpretations of treaty obligations. Carlos, Manuel Vazquez, The Military Commissions Act, the Geneva Conventions, and the Courts, 101 AJIL 73, 77–79 (2007)Google Scholar (in this Agora).

71 Actions characterizing the conflict with Al Qaeda as an international armed conflict might logically also lead to the undesirable conclusion that U.S. military installations are legitimate targets for Qaeda attacks. See Joan, Fitzpatrick, Jurisdiction of Military Commissions and the Ambiguous War on Terrorism, 96 AJIL 345, 348 (2002)Google Scholar.

72 Ingrid, Detter, The law of War 144 (2d ed. 2000)Google Scholar.

73 See Jack, Goldsmith & Eric A., Posner, A Better Way on Detainees, Wash. Post, Aug. 4, 2006, at A17 Google Scholar.

74 The Third Geneva Convention does not prohibit interrogation of POWs, but it does provide that a POW “is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number,” and that “[n]o physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.” Third Geneva Convention, supra note 8, Art. 17. Although the Convention does not envision that POWs are to be subjected to intensive interrogations and they may also be obligated by their own military commanders not to cooperate in providing useful information to their captors, the MCA makes “perjury,” “false testimony,” and “obstruction of justice” punishable offenses. See supra note 33.

75 Goldsmith & Posner, supra note 73.

76 Brian, Knowlton, Report Rejects European Denial of C.I.A. Prisons, N.Y. Times, Nov. 29, 2006, at A15 Google Scholar; Mark, Landler & Souad, Mekhennet, Freed German Detainee Questions His Country’s Role, N.Y. Times, Nov. 4, 2006, at A8 Google Scholar; Craig, Whitlock, European Report Details Flights by CIA Aircraft; Polish, Romanian Facilities Cited, Wash. Post, Nov. 29, 2006, at A14 Google Scholar.

77 Ian, Fisher & Elisabetta, Povoledo, Italy’s Top Spy Is Expected to Be Indicted in Abduction Case, N.Y. Times, Oct. 24, 2006, at A3 Google Scholar; Ian, Fisher & Elisabetta, Povoledo, Italy Seeks Indictments of C.I.A. Operatives in Egyptian’s Abduction, N.Y. Times, Dec. 6, 2006, at A12 Google Scholar.

78 Crawley, supra note 43.

79 Harold, Hongju Koh, The Case Against Military Commissions, 96 AJIL 337 (2002)Google Scholar.

80 Sean D., Murphy, Contemporary Practice of the United States, 96 AJIL 237, 255 (2002)Google Scholar.

81 Section 7(a) of the MCA amends 28 U.S.C. §2241 by adding the following subsection:

The MCA places no limit on the length of time a detainee may be required to wait for the initial determination of status or subsequent trial and instead makes the U.C.M.J. requirement for a speedy trial inapplicable to military commissions. 10 U.S.C. §948b(d)(1)(A).

82 Fitzpatrick, supra note 71, at 350.

83 Rasul v., Bush, 542 U.S. 466, 484 (2004)Google Scholar. The Court noted that by the express terms of a 1903 lease agreement, “the United States exercises ‘complete jurisdiction and control’ over the Guantanamo Bay Naval Base, and may continue to exercise such control permanently if it so chooses.” Id. at 480; see also Kal, Raustiala, The Geography of Justice, 73 Fordham L. Rev. 2501 (2005)Google Scholar.

84 A notable example of a European state exercising its sovereignty over a U.S. military base and related efforts there to bring terrorists to justice occurred in 1985 when U.S. fighters intercepted an Egyptian airliner and forced it to land at a U.S. naval air station located at Sigonella, Italy. The plane was carrying Abu Abbas and other members of the Palestine Liberation Front who were alleged to have hijacked the cruise liner Achille Lauro and murdered an American passenger. Although U.S. military personnel attempted to arrest the passengers on the plane, Italian police intervened and made their own arrests, Abu Abbas went free, and Italy filed protests with the United States claiming that its airspace had been violated by the U.S. fighters. See Robert J., Beck & Anthony, Clark Arend, “Don’t Tread on Us”: International Law and Forcible State Responses to Terrorism, 12 Wis. Int’l L.J. 153, 176 (1994)Google Scholar.

85 International agreements governing U.S. military activities in foreign states may be quite detailed and elaborate and, unlike informal arrangements, such agreements are much more likely to be subject to procedures that involve different agencies or departments of each government, as well as their respective legislative branches. This is largely true even if the agreements are classified, as reflected in U.S. government regulations that require classified agreements to conform to various requirements applicable to other agreements and to be submitted after their conclusion through appropriate channels to designated committees of the U.S. Congress. See Coordination, Reporting and Publication of International Agreements, 22 C.F.R. 181.7(b), (c), (d) (2006). To the extent that any U.S. activities related to detainees have taken place in European states based on secret informal arrangements, the resulting public outrage and governmental investigations following disclosures of such alleged activities would seem likely to make such an informal approach far more difficult in the future.

86 Facilities in foreign states that are used by U.S. forces for operations against both illicit drug trafficking and terrorism provide contemporary examples of international agreements in which states provide only specific types of access, usage, and other rights. See, e.g., Agreement on Access to and Use of Facilities in the Republic of Djibouti, U.S.-Djib., Feb. 19, 2003, Temp. State Dep’t No. 03-29, 2003 U.S.T. Lexis 8; Agreement Concerning the Status of United States Military and Civilian Personnel of the United States Department of Defense Who May Be Present in Kyrgyzstan in Connection with Cooperative Efforts in Response to Terrorism, Humanitarian Assistance and Other Agreed Activities, U.S.-Kyrg., Dec. 5, 2001, Temp. State Dep’t No. 02-84, 2001 U.S.T. Lexis 95; Interim Agreement Concerning the Use of Facilities in Ecuador to Increase Aerial Detection and Control of Illegal Narcotics Trafficking Operations, U.S.–Ecuador, Mar. 31, 1999, Temp. State Dep’t No. 99-55, 1999 U.S.T. Lexis 81.